abc Ward: Durrington Northbrook

Agenda Item: 7

Meeting: Planning Committee 11th May 2010

Subject: Provision of Western Access Road and Diversion Order – Public Footpath No 3114.

Author: Executive Head of Planning Regeneration

and Wellbeing

1. BACKGROUND 1.1 Members will recall that reserved matters approval was granted for the

replacement District Centre at West Durrington last year subject to a Deed of Variation to the original Section 106 Agreement to allow the provision of the replacement Community Centre on the New Road frontage and the provision of the western access road within 6 months of the opening of the new store. It was originally intended that the Deed of Variation would only require the completion of the western access following the diversion of public footpath No. 3114. However, during subsequent negotiations it was determined that, as a fallback position, the western access could still be built without affecting the definitive route if the footpath for whatever reason could not be diverted. The signed Deed of Variation therefore required the western access to be completed within 6 months of the opening of the new store. Planning Committee subsequently, at its meeting on the 6th October 2009, resolved to proceed with the Diversion Order i.e. undertake the necessary advertising and consultation under s257 of the Town and Country Planning Act 1990. The attached plan indicates the proposed footpath diversion.

1.2 Members will be aware that work commenced on site to construct the

replacement District Centre and the new Tesco store opened on the 27th February. A number of complaints were received during the construction period with adjoining property owners in Canberra Road complaining of damage caused by construction work and expressing concern about the impact of noise from construction and subsequently delivery vehicles. Residents at the time were reassured that the western access road would be built and this would alleviate their concerns regarding the heavier Tesco delivery vehicles. Members will recall that the delivery area for the Tesco store is to the west of the District Centre and would be served by Fulbeck Avenue (a planning condition also seeks to ensure that all deliveries to the Tesco store use this western access road. The approved layout plan is also attached to this report for Members information.

Planning Committee Agenda item: 7 11th May 2010

1.3 In view of these complaints both Tesco and Officers at Borough and

County Council level were under pressure to agree the design of the new roundabout so that work could start on site and the western access road be completed as soon as possible. Negotiations on the detailed highway design were undertaken between Tesco’s Highway Consultants, the County Council as Highway Authority and the Environment Agency. In addition, as the proposed roundabout was being built on land owned by the Consortium Tesco was required to seek the West Durrington Housing Consortium’s approval to the final design. Once the County Council had granted technical approval for the roundabout design (under s278 of the Highways Act) your Officers discharged the condition requiring access details to be agreed. As it was envisaged that the footpath could remain on its definitive route was the access road was completed work commenced on the provision of the western access earlier this year. Although preparatory work was undertaken on the footpath Diversion Order the County Council questioned whether it was appropriate to use the Planning Acts to secure the diversion on the basis that it might be more appropriate to use the Highways Act as the footpath would connect to a new section of public highway. At the present time this matter remains unresolved and further legal advice is awaited.

2. CURRENT SITUATION 2.1 Following the commencement of work on site complaints were then

received in connection with the construction of a large culvert to the rear of Varey Road properties. Your Officers visited the site and noted that the size of the culvert installed would mean that the access road and roundabout would have to be built significantly higher then existing ground levels. Photographs of the partly constructed culvert will be available at the meeting. A site meeting took place and it was clear that if completed as designed the western access road and roundabout would have an adverse impact on the amenities of residents in Varey Road. The roundabout as approved would have to be constructed at a height of 1.6 metres above ground level gradually reducing in height to connect with the proposed extension of Fulbeck Avenue. Given the concerns of residents of Canberra Road (where the car park is at the same level or in some cases below adjoining gardens) Tesco agreed to cease work to investigate alternatives to reduce the impact on Varey Road properties.

2.2 It appears that the culvert pipe installed (1200 mm) is necessary to

deal with the risk of flooding in the future. As a result Tesco submits that the only feasible alternative would be the diversion of the watercourse. However, it states that this would involve land outside of its control (although within the application site boundary) and the backfilling of the existing ditch may result in further tree loss. Of particular concern would be a large Oak to the north of the proposed roundabout (your Officers consider, however, that necessary precautions could be deployed to avoid damage to this and other trees).

Planning Committee Agenda item: 7 11th May 2010

The main difficulty in diverting the water course is that it would involve land outside the control of Tesco and this could result in a protracted delay in the provision of the western access. In addition, Tesco maintains that the maximum reduction in height would be I metre (and more likely to be 700 mm) and that this would only result in a 400mm perceived difference in height when measured from the top of the boundary fence at the rear of No 2 Varey Road. A number of cross sections have been prepared which demonstrate the relationship between the ‘approved’ highway scheme and the likely reduction in height that could be achieved with diverting the watercourse.

2.3 Tesco has put forward a number of possible mitigation measures which

include the provision of acoustic fences and planting at the rear of No 2 Varey Road and it has been agreed that these would be required whether the roundabout/road can be lowered or not. Plans will be available at the meeting to demonstrate the relationship between the proposed roundabout and Varey Road properties. A letter has also been recently received from Solicitors acting for Tesco setting out the current position and why it considers that it would be unreasonable to prevent work continuing on constructing the western access and this letter is appended to this report.

3. FOOTPATH DIVERSION 3.1 A further complication in this matter is that the footpath has not been

diverted and it appears that it would be extremely difficult for the footpath to remain on its definitive route with the western access and roundabout being constructed significantly above existing ground levels and walkers having to negotiate a steep bank to pass over the new road. It appears that the negotiations on the new junction with the highway authority did not have full regard to the requirement to maintain the definitive footpath, if required. Maintaining this footpath in the future would also restrict the scope for planting to mitigate the impact of the road. Your Officers are currently discussing this matter with the County Council and the legal position regarding the footpath is still being assessed. Members will be updated at the meeting if there are any further developments but it may be necessary to delay construction work, in any event, to resolve the footpath diversion/stopping up issues.

4. PLANNING CONSIDERATIONS 4.1 It is apparent that having stopped construction work, at the Council’s

request, it will be extremely difficult for Tesco to now comply with the requirements of the legal agreement even if it was considered that work could re-commence immediately with the footpath issued resolved. Given that Tesco agreed voluntarily to stop work and is currently considering additional mitigation works to reduce the impact of the western access on adjoining properties it would be appropriate to agree an extended period to complete the works. This could be

Planning Committee Agenda item: 7 11th May 2010

achieved either by agreeing not to enforce the terms of the agreement for a specified period or agreeing a further Deed of Variation.

4.2 This is an extremely difficult case as there are residents to the east of

the new store affected by the delay in the construction of the western access and yet the potential impact on residents to the west is far greater if the current highway design is pursued. There is a general acceptance that the current situation is far from ideal. Although Tesco maintains that the reduction in height may be only 700 mm even this reduction would help to keep the road and footpath at a lower level adjacent to No.2 Varey Road as indicated on the submitted cross sections. It is disappointing that the problem with the culvert height was not highlighted during negotiations with the Highway Authority and Environment Agency although the limited alternatives would remain the same. Whilst, your Officers are sympathetic to the current dilemma Tesco finds itself and the costs it has incurred to date, if work has to be delayed to resolve the footpath diversion then it would be appropriate to continue to investigate the option of diverting the watercourse. At the present time it is not clear whether any approach has been made to the adjoining landowner and any significant reduction in height of the road together with the provision of acoustic fencing would improve the situation for local residents. As this access is also to serve the West Durrington development it is important that it is sympathetically designed having regard to the amenities of adjoining residents.

4.3 With the current uncertainty surrounding the footpath diversion no clear

recommendation can be made at this time, although Members are requested to agree the principle of not complying with the legal agreement and to note the current position. A further report will be presented once the legal position with regard to the footpath diversion is clarified as this will impact on the extent of any delay and ability to pursue the diversion of the watercourse.

5. RECOMMENDATION 5.1. Members are requested to note the current position and to agree,

in principle, not to enforce the requirements of the legal agreement relating to the construction of the western access within 6 months of the store opening.

6. BACKGROUND PAPERS 6.1. Planning Application No. WB/05/0245/OUT Planning Application No. WB/09/0146/ARM

11th May 2010

Planning Committee Agenda item: 7 11th May 2010

our ref

your ref

ADEA.T0034.15263

ddi 020 7760 4720 e-mail Abigail. Walters@blplaw.com James Appleton Worthing Borough Council Town Hall Chapel Road Worthing West Sussex BN11 1HA

5 May 2010

Dear James

Re: Tesco Stores Limited - West Durrington – Fulbeck Avenue Extension

Committee Meeting 11 May 2010

In light of the above matter having been referred to Members for further consideration at planning committee on 11 May 2010, we would like to make some further representations on Tesco’s behalf. We should be grateful if you could ensure that these representations are brought to all relevant Members’ attention along with the committee report.

As you will be aware, Tesco was granted planning permission to construct a road to connect Fulbeck Avenue with the District Centre’s western access road.

The western access was deemed important:

• to enable residents of any future residential development to the west to access the district centre by road; and

• to prevent delivery vehicles from passing the rear of Canberra Road properties, which was considered undesirable by residents.

Tesco voluntarily stopped work on the Fulbeck Avenue extension when requested to do so by the Council in light of a resident’s objection about the height of the Link Road. Subsequently Tesco have had discussions with you and carried out investigations to see if there are any other engineering solutions to achieve a road at a lower height. Tesco’s advisors’ conclusions are that there are no other appropriate engineering solutions which would deliver the road at a significantly lower height and therefore the presently consented Link Road is the only deliverable solution. We have expanded on the reasons why this is the case below.

Problems with delivery of an alternative Link Road design

The only other possible alternative engineering solution for the delivery of the Link Road requires additional third party land (owned by Nissan UK) in order to allow the diversion of the watercourse across this land. It is not therefore within Tesco’s control to deliver this alignment.

to James Appleton date 5 May 2010 page 2 The alternative engineering solution does not have planning permission for the changes suggested. The Council would therefore need to rectify the planning position if they wished to proceed with the alternative engineering solution for the Link Road.

The alternative design would need to be worked up and obtain detailed design approval from the County Council and the Environment Agency and Southern Water. Further statutory agreements would need to be prepared i.e. section 104 Agreements, Section 38/278 Agreements. Additionally a new temporary footpath closure order would be required. This work all has cost and timescale implications.

The alternative engineering solution only secures a 40cm reduction in the height of the road (as perceived at the residential properties). Tesco have discussed mitigation and screening measures with the residents including a 4 m high acoustic fence along the Tesco property boundary line, a 2.6 m high acoustic fence along the side and rear of number 2 Varey Road and additional landscape/screen buffer as per drawing no. 6465/SK58. If the alternative engineering solution is pursued mitigation and screening measures will still be required.

Given the difficulties/impossibilities with delivery of the alternative engineering solution and the relatively small benefits achieved Tesco do not consider the alternative to be a proportionate response.

At present the Store and wider District Centre have to be serviced from the east via Canberra Road. The Council conditioned this to stop as soon as the Link Road is delivered (see condition 12 of permission WB/09/0146/ARM. The reason for that condition was to ensure that the development accords with the terms of the planning application, and in the amenity of existing and proposed residential dwellings. The use of the eastern access for deliveries was therefore only intended to be short term solution as it creates safety conflicts between vehicles and pedestrians and HGVs within the car park.

Furthermore the residents of Canberra Road continue to have HGV’s passing their properties which they are regularly objecting to both to Tesco and the Council. A solution to these problems is required as soon as possible.

The timescales for delivery of an alternative design would (in Tesco’s view) be in excess of a year before an alternative Link Road was in place. This is because it will take time to work up a new detailed design, agree it with Southern Water, the Environment Agency, the Landowners concerned, put in place the new statutory agreements with all parties, sort out a new temporary footpath closure and then tender and carry out the highways works themselves.

As we have previously noted, we are concerned that this would lead Tesco into a situation where it breaches its section 106 obligation in relation to the timing of the delivery of the road.

However from a practical perspective if the Council decide to pursue an alternative engineering solution we do not understand how this can be achieved in practice unless the Council were to modify the planning permission which brings with it consequent liability for compensation.

Nonetheless if the third party land required for the relocation of the watercourse is not acquired, this alternative solution would never be deliverable and the Link Road will not be provided.

Cost Implications of an alternative design

to James Appleton date 5 May 2010 page 3 Tesco have already spent in the region of £50,000 on professional fees and design costs in working up the current design. Additionally they have paid third parties such as Southern Water and the County Council in excess of £90,000 for their design work and checking. Further Tesco have spent in excess of £37,000 in legal fees in putting in place the statutory agreements and temporary closure orders and negotiating with all relevant parties in order to be in a position to start construction of the road. Further Tesco have spent in the region of £70,000 on contract costs on work already carried out to date on the Link Road. This is a total of around £247,000

These costs will be abortive if the Council decide to insist on delivery of an alternative solution for the delivery of the Link Road. Additionally further costs would be incurred in delivering the alternative solution including potentially significant land acquisition costs (if the third party land can be acquired) and all costs associated with the re-design and approval process including putting new statutory agreements in place (likely to be similar again to the costs incurred to date).

Mitigation Measures

Tesco have already offered to carry out mitigation and screening measures comprising planting and the provision of acoustic fencing which, we understand, it may be possible to undertake following submission of further details pursuant to existing planning permissions as opposed to necessitating modification of a consent. Tesco’s transport consultants continue to be in contact with you on these proposals and Tesco wish to work with the Council to consider the provision of any reasonable, necessary and deliverable mitigation measures.

Benefits of proceeding with existing consented scheme

If Tesco proceed with the consented scheme, then the Link Road could be in place in as little as three to four months time. The presently agreed mitigation measures can be put in place within the same timeframes to address the concerns that have been raised. This will mean that the Link Road is available for servicing and deliveries to the new Store and District Centre in line with the planning conditions removing conflicts from the car park area and HGV’s from Canberra Avenue. The Link Road will also deliver the section 106 requirements and also one of the Council’s local plan objectives.

Yours sincerely

Abigail Walters

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